In May last year, the Taiwan High Court ruled that a retrial should be held in the case of Lu Chieh-min (呂介閔) and that his jail sentence should be suspended. Lu, who had been found guilty of murder and given a 13-year jail sentence that was upheld on appeal, was then released after serving four years of his sentence, and on Dec. 30, after seven months of deliberation, the Taiwan High Court found Lu not guilty.
Hiroshi Sato, who acted as defense attorney for the wrongfully convicted man in Japan’s Ashikaga Case, once commented that before DNA evidence became available, not-guilty verdicts were sometimes “gray-area acquittals” resulting from a lack of sufficient evidence, rather than “real” acquittals. Sato said that in the age of DNA technology, when a DNA test excludes the presence of an accused person’s DNA, it is a “genuine” exclusion and when a court finds the accused not guilty under such circumstances it can be called a “complete” acquittal.
Lu’s acquittal following a retrial demonstrates once again that DNA testing plays a key role not only in ordinary criminal procedures, but also in remedial procedures that seek to reverse wrongful convictions.
The guilty verdict in Lu’s case was based on analysis of a sample collected from the victim’s left breast. Tests conducted by the National Police Agency’s Criminal Investigation Bureau showed that the sample was a mixture containing saliva that belonged to a male. However, because the sample did not meet the criteria for a definite DNA profile, it was not possible — relying on the technology available at that time — to determine whose saliva it was.
The specimen was then submitted for further testing by the Ministry of Justice’s Investigation Bureau, but again, because the sample did not contain enough DNA material, it was not possible to compare it.
Last year, prosecutors mandated the Criminal Investigation Bureau to test the sample again using the most modern Y chromosome DNA variance analysis technology and this test showed a definite mismatch with Lu’s DNA.
DNA technology is still advancing, and a situation where existing technology cannot produce a clear test result does not mean that it would still not be possible to do so in future.
An example is the case of Chen Lung-chi (陳龍綺), who, convicted of sexual assault in 2012, was retried in 2014 and found not guilty. At the time of his original trial, the Criminal Investigation Bureau carried out tests using the then-existing 17 Y-chromosomal short tandem repeat (Y-STR) profiling, and the test concluded that the presence of Chen’s genetic material “could not be excluded.”
Chen was found guilty and the verdict was upheld on appeal, but he continued to maintain his innocence. Following his unsuccessful appeal, Chen was granted a retrial and the court authorized new forensic tests using 23 Y-STR comparison technology, which in 2013 was the newest available. This test concluded that the sample did not match Chen’s DNA. The court then held a retrial, resulting in Chen’s acquittal.
Remedial actions in overseas wrongful conviction cases have repeatedly shown that DNA testing can play a role in exonerating wrongfully convicted people. In the US, since 1992 a total of 336 people have been exonerated by means of DNA testing, and in 140 of these overturned cases the technology has led to the perpetrators of the crimes.
Wrongful imprisonment can be said to be a double injustice in that not only is an innocent person wrongfully imprisoned, but the real perpetrator is not caught. Hence, DNA testing can play the dual roles of exonerating the wrongfully convicted and finding the real culprit. Several US states have established post-conviction DNA testing systems with the purpose of pursuing the truth and preventing people from continuing to be wrongfully imprisoned.
Taiwan, on the other hand, has no established system for post-conviction DNA testing, so convicted people have no right to apply for DNA tests and can only wait in the hope that those who have the power to arrange a DNA test decide to do so. Chen’s acquittal shows that Taiwan really needs to institute a post-conviction DNA testing system.
An even more important aspect of Lu’s acquittal is that it was prosecutors who reopened investigations into his case after his conviction and requested a retrial. Prosecutors have the right to request a retrial in the interest of a convicted person, but Taiwan does not have any established department within its prosecutorial system for seeking remedies in wrongful conviction cases. Instead, the system relies on individual prosecutors to launch such proceedings.
Referring once more to the US experience, it has been found that wrongful conviction case examinations carried out by prosecutors are the most effective way of exonerating wrongfully imprisoned people. Consequently, many places in the US have established “conviction integrity units” in their local prosecutors’ offices, these units being tasked with investigating wrongful conviction cases and exonerating those who have been wrongfully imprisoned.
Although Lu’s acquittal following his retrial is an exciting development, it must be asked how many other people are in jail because of wrongful convictions, hoping that DNA tests would eventually exonerate them.
Lu’s retrial shows that Taiwan needs to establish a post-conviction DNA testing system. It also shows that, besides prosecuting criminals, prosecutors are responsible for exonerating those who have been wrongfully imprisoned. One can hope that those who have the power to make changes reflect on Lu’s case and reconsider the need for institutional reforms.
Lo Shih-hsiang is chief executive officer of the Taiwan Association for Innocence.
Translated by Julian Clegg
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